Intellectual Property The Law of Trademarks Copyrights Patents and Trade Secrets 5th Edition Ebook PDF Version

Intellectual Property: The Law of
Trademarks, Copyrights, Patents, and

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Glossary 513
Index 529
To access the appendices, go to http://www.cengagebrain.com

and search for the title of this book.
appendix a table of treaties
appendix B State trademark registration Provisions
appendix C resources
appendix D Forms appendix
appendix E Selected Statutes
appendix F the Leahy-Smith america Invents act: Summary and Discussion
CONTENTS
Preface xvii
Acknowledgments xxii
Selected Exhibits xxiii
PART I Introduction to Intellectual Property

Chapter 1 IIntroduction to Intellectual Property Law 3
Chapter Overview 3
Intellectual Property Law Basics 4
Types of Intellectual Property 4
T
Agencies Responsible for Intellectual Property Registration 8
International Organizations, Agencies, and Treaties 10
The Increasing Importance of Intellectual Property Rights 11
Trivia 12
Chapter Summary 13
Case Illustration—Policies Underlying Intellectual Property Law 13
Case Study and Activities 13
Role of Paralegal 14
Internet Resources 14
Using Internet Resources 15
Discussion Questions 15
Putting It Into Words 16
PART II The Law of Trademarks

Chapter 2 FFoundations of Trademark Law 19
Chapter Overview 19
Introduction 20
Purpose and Function of Trademarks 21
vii
viii Contents
T
Types of Marks: T
Trademarks, Service Marks, Certification Marks, and Collective Marks 21
Acquisition of Trademark Rights 23
Common Law Rights, Federal Registration Under the Lanham Act, Laws and Treaties
Governing Trademarks, and State Trademark Rights 25
Categories of Marks 27
Trade Names and Business Names 29
Protectable Matter 30
Exclusions From Trademark Protection 35
U.S. Patent and Trademark Office 39
Trivia 40
Chapter Summary 40
Case Illustration—Refusal to Register Misdescriptive Mark 41
Chapter 3 TTrademark Selection and Searching 44

Chapter Overview 44
Selecting and Evaluating a Mark 45
The Trademark Search 45
Trivia 56
Chapter Summary 56
Case Illustration—Effect of Failure to Perform Trademark Search 56
Chapter 4 TThe Trademark Registration Process 59

Chapter Overview 59
Preparing the Application 60
Drawing of Mark 67
Filing the Application, Docketing Critical Dates, and Initial Role of the U.S. Patent and
Trademark Office 71
The Examination Process 73
Postexamination Procedure 79
Registration 83
The U.S. Patent and Trademark Office’s TSDR Monitoring System 87
Trivia 87
Chapter Summary 88
Case Illustration—De Minimis Use of Mark Does Not Establish Trademark Rights 88
Chapter 5 Postregistration Procedures, Trademark Maintenance, and

Transfer of Rights to Marks 92
Chapter Overview 92
The Affidavit of Use 93
The Affidavit of Incontestability 94
Contents ix
Renewal of Registrations 95
Docketing Requirements 96
Loss of Trademark Rights 97
Trademark Use and Compliance Policies 99
Trademark Policing and Maintenance 101
Use of Marks Owned by Third Parties 102
Transfer of Ownership or Rights in Trademarks 103
Trivia 112
Chapter Summary 112
Case Illustration—“Google” Is Not a Generic Term
T 113
Chapter 6 IInter Partes Proceedings, Infringement, and Dilution 116

Chapter Overview 116
Inter Partes Proceedings 117
Infringement of Trademarks 123
Dilution of Trademarks 136
Related Trademark Claims 138
Trivia 142
Chapter Summary 142
Case Illustration—Likelihood of Confusion as T
Test for Trademark Infringement 143
Chapter 7 NNew Developments in Trademark Law 147

The Internet 148
Protecting a Domain Name 150
Hyperlinking and the First Amendment 156
Other Cyberspace Trademark Issues 157
Trivia 162
Chapter Summary 162
Case Illustration—Infringement Under ACPA
CP
CPA 163
Chapter 8 IInternational Trademark Law 166

Applications in the United States Based on Foreign Applications and Registrations 167
Securing Trademark Protection in Foreign Countries 170
Effects of New International Agreements (NAFTA, TRIPS, and the Trademark Law Treaty) 179
International Associations 180
Trivia 181
Chapter Summary 181
x Contents
Case Illustration—Effect of Foreign Registration in United States 182

PART III The Law of Copyrights

Chapter 9 FFoundations of Copyright Law 187
Introduction 188
Common Law Rights and Rights Under the 1976 Copyright Act 189
Amendments to 1976 Copyright Act 190
The U.S. Copyright Office 191
Trivia 192
Chapter Summary 192
Case Illustration—Purpose of Copyright Law 193
Chapter 10 TThe Subject Matter of Copyright 196

Introduction 197
Originality of Material 197
Fixation of Material 197
Works of Authorship 198
Exclusions from Copyright Protection 203
Compilations, Collections, and Derivative Works 207
Trivia 209
Chapter Summary 210
Case Illustration—Copyrightability of Characters 210
Chapter 11 TThe Rights Afforded by Copyright Law 213

Introduction 214
Rights of Reproduction 214
Rights to Prepare Derivative Works 215
Rights of Distribution and the First Sale Doctrine 216
Rights to Perform the Work Publicly 219
Contents xi
Exception for Sound Recordings 219

Performing Rights Organizations 222
Rights to Display the Work Publicly 223
Other Limitations on Exclusive Rights 224
Moral Rights and the Visual Artists Rights Act 225
Compulsory Licenses 227
Trivia 228
Chapter Summary 229
Case Illustration—Derivative Rights 229
Chapter 12 Copyright Ownership, Transfers, and Duration 232

Copyright Ownership Issues 233
Joint Works 233
Ownership in Derivative or Collective Works 235
Works Made for Hire 235
Transfers of Copyright 239
Termination of Transfers of Copyright Rights 241
T
Duration of Copyright 243
Trivia 245
Chapter Summary 246
Case Illustration—Duration of Copyrights 246
Chapter 13 Copyright Registration, Searching Copyright Office

Records, and Notice of Copyright 250
Introduction 251
The Application for Copyright Registration 251
Deposit Materials 255
The Application Process and Registration of Copyright 257
Searching Copyright Office Records 260
Obtaining Copyright Office Records and Deposit Materials 261
Copyright Notice 262
Trivia 266
Chapter Summary 267
Case Illustration—Congress Had Power to Restore Copyrights in Foreign Works 267
xii Contents
Chapter 14 Copyright Infringement 270

Introduction 271
Elements of Infringement 271
Contributory Infringement and Vicarious Infringement 276
Defenses to Infringement 277
Infringement Actions 283
Trivia 287
Chapter Summary 287
Case Illustration—Fair Use 288
Chapter 15 New Developments in Copyright Law and the

Semiconductor Chip Protection Act 291
Introduction 292
Copyright Protection for Computer Programs 293
Copyright Protection for Databases 298
Copyright in the Electronic Age 299
The Digital Millennium Copyright Act 303
Entertainment Notes 307
Recent Developments in Copyright Law 312
Terms of the Trade 315
T
Vessel Hull Protection 316
V
Semiconductor Chip Protection 317
Trivia 319
Chapter Summary 319
Case Illustration—Prince, the Dancing Baby, and the Safe Harbor of the DMCA 320
Chapter 16 International Copyright Law 323

Introduction 324
The Berne Convention 324
Treaties Supplementing the Berne Convention: The WIPO Internet Treaties 325
The Uruguay Round Agreements Act 326
The Universal Copyright Convention 327
Trade Aspects of Intellectual Property Law 328
Gray Market Goods 328
Contents xiii
Summary of U.S. Relations with Foreign Nations 329

Trivia 329
Chapter Summary 330
Case Illustration—Application of the First Sale Doctrine to Foreign-made Goods 330
PART IV The Law of Patents

Chapter 17 FFoundations of Patent Law 335
Introduction 336
Rights Under Federal Law 336
U.S. Patent and Trademark Office 337
Patentability 338
Design Patents 347
Plant Patents 349
Double Patenting 351
The Orphan Drug Act 351
Trivia 352
Chapter Summary 352
Case Illustration—Dolly the Sheep Cannot Be Patented 352
Chapter 18 Patent Searches, Applications, and Post-Issuance

Proceedings 356
Patent Searching 357
The Patent Application Process 362
Prosecuting the Application 375
Post-Issuance Actions 389
Patent Challenges Under the AIA and Supplemental Examination 391
Term and Maintenance of Patents 393
T
Trivia 394
Chapter Summary 395
Case Illustration—Definiteness of Claims 395
xiv Contents
Chapter 19 Patent Ownership and Transfer 399

Ownership Rights 400
Sole and Joint Inventors 400
Disputes over Inventorship 401
Inventions Made by Employees and Independent Contractors 401
Assignment of Patent Rights 402
Licensing of Patent Rights 405
Invention Promoters 406
Trivia 407
Chapter Summary 407
Case Illustration—Spider Man and the Duration of Patent Royalties 408
Chapter 20 Patent Infringement 411

Direct Infringement, Inducement to Infringe, and Contributory Infringement 412
The First Sale Doctrine 413
Imports 413
Indirect Infringement 414
Infringement Abroad 415
Claims Interpretation 415
Defenses to Infringement 418
Remedies for Infringement 421
Resolving an Infringement Dispute 423
Patent Infringement Litigation 424
Alternatives to Patent Infringement Litigation 427
Trivia 428
Chapter Summary 428
Case Illustration—Award of Attorney’s Fees in Infringement Cases 429
Chapter 21 N Developments and International

New
Patent Law 432
New Developments in Patent Law 433
Introduction to International Patent Protection 443
The Paris Convention 444
The Patent Cooperation Treaty 445
The European Patent Organization 449
The Patent Prosecution Highway, the IP5, and Global Dossier 450
Contents xv
Agreement on Trade-Related Aspects of Intellectual Property Rights 451

The Patent Law Treaty and the Hague Agreement 451
Foreign Sales and the Exhaustion Doctrine 452
Foreign Filing Licenses 452
Applications for U.S. Patents by Foreign Applicants 453
Trivia 453
Chapter Summary 454
Case Illustration—Patentability of Particular Methods Post-Alice 454
PART V The Law of Trade Secrets and

Unfair Competition
Chapter 22 TTrade Secret Law 461
Introduction 462
Determination of Trade Secret Status 465
Liability for Misappropriation of Trade Secrets 466
Misappropriation by Third Parties 467
Employer–Employee Relationships 468
Protection for Submissions 471
Defenses to Trade Secret Misappropriation 473
Remedies for Misappropriation Under State Law 474
Defend Trade Secrets Act of 2016 474
Trade Secret Litigation 475
Trade Secret Protection Programs 476
New and International Developments in Trade Secret Law 479
Trivia 480
Chapter Summary 480
Case Illustration—Scouting Reports Can Constitute Trade Secrets 481
Chapter 23 Unfair Competition 484

Introduction 485
Passing Off 486
Misappropriation 487
Right of Publicity 488
False Advertising 492
Product Disparagement 495
Dilution 496
Infringement of Trade Dress 496
xvi Contents
International Protection Against Unfair Competition 497

Trivia 498
Chapter Summary 498
Case Illustration—Athletes, Video Games, and the Right of Publicity 499
Chapter 24 IIntellectual Property Audits and Due Diligence Reviews 502

Introduction 503
Practical Aspects of Intellectual Property Audits 504
Conducting the Audit 505
Postaudit Activity 505
Trivia 509
Chapter Summary 510
Case Illustration—Value of Intellectual Property 510
Glossary 513
Index 529
To access the appendices, go to www.cengagebrain.com

and search for the title of this book.
Appendix A T
Table of Treaties
Appendix B State Trademark Registration Provisions
Appendix C Resources
Appendix D Forms Appendix
Form 1 Trademark Application
Form 2 Statement of Use
Form 3 Request for Extension of Time to File a Statement of Use
Form 4 Combined Affidavit Under Sections 8 and 15 of the Lanham Act
Form 5 Application for Renewal of Trademark Registration (Combined with Declaration
of Use Under Section 8 of the Lanham Act)
Form 6 Request for Extension of Time to File Notice of Opposition
Form 7 Opposition to Registration of Trademark
Form 8 Consent to Use and Register Agreement
Form 9 Petition to Cancel Trademark Registration
Form 10 Complaint for Trademark Infringement
Form 11 Trademark Settlement Agreement
Form 12 Work for Hire Provisions
Form 13 Copyright Application Form CO
Form 14 Employee Nondisclosure and Noncompetition Agreement
Form 15 Evaluation Agreement
Form 16 Confidentiality Agreement
Appendix E Selected Statutes
Appendix F The Leahy-Smith America Invents Act: Summary and Discussion
PREFACE
The Congress shall have power to promote the progress
of science and useful arts, by securing for limited times to
authors and inventors the exclusive right to their respective
writings and discoveries.
U.S. Const. art. 1, § 8, cl. 8
The field of intellectual property (typically referred to as IP) is one that continues its rapid
growth. Until relatively recently, individuals who identified themselves as practitioners in
the field of intellectual property were met with blank stares. Now IP professionals are in
constant demand, and it is a rare issue of any legal newspaper that does not include adver-
tisements for IP practitioners. Many experts believe this rapid growth can be attributed to
the spread of computer and communications technologies throughout the world. Reflecting
this, technology-related legislation is continually introduced in Congress. The number of
trademark and patent applications filed at the U.S. Patent and Trademark Office continues
to grow. Similarly, there is increased emphasis on the need to enhance protection of written
materials, including computer software, through copyright or patent registration.
Today’s competitive businesses recognize that more than 80 percent of their value can
lie in their intellectual property. With increased technology and global communication
come greater challenges to protect intellectual property. Misappropriation or infringement
of valuable proprietary information is a keystroke away. Thus, companies and law firms
value the expertise of IP professionals who can assist in adopting strategies to ensure IP
assets are fully protected.
IP practice groups make extensive use of paralegals. Paralegals are involved in nearly
every stage of trademark and patent prosecution and maintenance practice and in the area
of copyright registrations and IP audits. The field offers significant opportunities for client
contact, challenging issues, and personal and intellectual growth. The specialized nature of
IP practice produces highly capable and efficient paralegals whose contributions are valued
by both other legal professionals and clients. Expertise in the field is recognized by salaries
that are typically higher than those for paralegals in other fields. In addition to law firm IP
practice, many paralegals are employed in-house at companies with significant IP assets.
These paralegals work closely with in-house counsel to meet the company’s needs. In brief,
the field provides significant and rewarding opportunities for career satisfaction.
xvii
xviii Preface
The recent increased interest in intellectual property, coupled with nearly daily changes
in IP law, has caused a relative scarcity in texts that provide both sound, foundational con-
cepts together with the practical advice needed to ensure success for IP paralegals.
This text provides a comprehensive guide to each field within the umbrella of intellec-
tual property, namely, trademarks, copyrights, patents, trade secrets, and unfair competi-
tion. The methods by which each is created, procedures to register or protect each, duration
of rights, protection from infringement, and new and international developments will be
addressed for each of these fields of intellectual property.
Each chapter begins with an introduction to the topics covered therein and concludes
with a brief overview of the material presented. Information is arranged in a building-block
approach so the reader is presented with comprehensive coverage of each topic. Discussions
of each field of intellectual property conclude with a section on the new and emerging
issues in that field and then an overview of international implications, such as the methods
by which intellectual property can be protected in other countries.
The substantive overview of each topic is complemented by the use of forms, sample
agreements, checklists, and other practical guides. References to useful resources and web-
sites are provided in each chapter and online in Appendix C so readers can gather additional
information. The specific tasks in which IP professionals are involved are fully addressed.
Discussion questions are provided to ensure thorough understanding of each topic. Each
chapter presents questions requiring readers to access Internet websites that are of particular
interest to IP professionals and requires readers to draft written explanations or descriptions
of concepts from the chapter. Key terms are shown in boldface in the text and defined in
the margins as well as included in a glossary at the end of the text. Selected trademark,
copyright, and patent statutes are provided in Appendix E which is posted on this book’s
companion website.
The field of intellectual property is one of the most dynamic and challenging of all
legal specialties. Many of the issues are cutting edge: How can a domain name be protected?
How can a company ensure its trade secrets are not misappropriated by an employee? What
is the best way to protect a computer program that may be obsolete in three years? How can
a business be sure its website does not infringe that of a third party? How can intellectual
property be protected on social media? How can movies and songs be protected against
piracy?
Providing assistance to IP owners thus provides unique opportunities for learning and
growth. Moreover, the field of intellectual property is inherently interesting. All of us see
and recognize trademarks each day. All of us read books, watch movies, and use inventions.
Thus, readers bring a wealth of practical and firsthand knowledge to the study of IP law.
This text allows readers to link their experience as consumers with the substantive informa-
tion presented to ensure IP owners are provided a full range of strategies and methods to
protect their valuable assets.
ADDITIONS AND ENHANCEMENTS TO THE FIFTH EDITION

Each chapter includes the following enhanced and new features:
• Trivia. A “fun” section pointing out interesting and new IP facts, statistics, and trivia;
for example, one of the chapters discusses the copyright registration for the Statue of
Liberty
• Case Illustration. A short “brief ” of a case— usually either a seminal case or
ground-breaking one—that illustrates a principle discussed in that chapter
• Case Study and Activities. A factual scenario involving a fictional company, Fit Forever,
Inc., requiring students to identify various IP problems Fit Forever is encountering and
suggest strategies to solve those problems; as an operator of fitness centers, Fit Forever
has a host of trademarks, copyrighted materials, and patented inventions
Preface xix
• Internet Resources. A short section given at the end of each chapter with websites
specific to the information previously discussed in that chapter
• Ethics Edge. A short ethics tip or pointer relevant to one of the topics discussed in
that chapter
• Using Internet Resources. A section requiring readers to access numerous websites
and answer questions that are typical of those that occur in real-life IP practice
• Putting It Into Words. A new section requiring students to write letters or draft
explanations of concepts discussed in that chapter
This edition also includes several new features and discussion of the following new
topics:
• Numerous calendaring, docketing, and fee calculation questions
• Discussion of new trademark issues such as trademark bullying and the registrability
of hashtags
• Discussion of the liability of service providers such as eBay for selling counterfeit or
infringing goods
• Implementation of hundreds of new domain names by ICANN and the Uniform Rap-
id Suspension System, which is the new ICANN resolution process to protect gTLDs
• Expanded discussion of the fair use defense in copyright infringement cases
• Enhanced discussion of the Digital Millennium Copyright Act and recent cases
interpreting when Internet service providers such as YouTube are entitled to its safe
harbor protections
• Discussion of copyrightability of new forms of writings such as tattoos and social
media postings
• List of common copyright infringements committed by students
• Change from the U.S. Patent Classification System to the Cooperative Patent
Classification System and implementation of reduced fees for micro entities
• Review of the USPTO’s Seven Step Patent Search Strategy
• New term for design patents
• Updated coverage of patentability of software and proposals for patent reform to curb
infringement actions brought by “trolls”
• Enhanced discussion of challenges to patents brought at the Patent Trial and Appeal
Board, such as inter partes review and post-grant review
• Discussion of the new Defend Trade Secrets Act of 2016, signed into law in May 2016
• Discussion of the effect of Brexit on European and United Kingdom IP rights
Readers will also find new information on enhanced systems at the U.S. Patent and
Trademark Office and Copyright Office for streamlining trademark, patent, and copyright
applications, and discussion of new and pending IP-related legislation.
Finally, this fifth edition contains discussions of cutting-edge IP issues such as trademark
and copyright protection for hashtags and social media postings, whether 3-D printing
infringes copyright and patent rights, jailbreaking of iPhones, the Copyright Office’s Fair
Use Index, defensive patenting, and ground-breaking new cases such as In re Tam (holding
that the Trademark Act’s prohibition against disparaging marks violates the First Amend-
ment’s guarantee of free speech); Authors Guild v. Google (allowing Google’s book scanning
project as a fair use of copyrighted works); Petrella v. Metro-Goldwyn-Mayer, Inc. (holding
that the laches defense cannot be used in copyright infringement cases); Myriad Genetics
(holding that naturally occurring DNA segments are not patentable); and Alice Corp. v.
CLS Bank International (tightening the ability of inventors to obtain software patents).
General notes to readers

Throughout this text, helpful websites, fees, and addresses are given. Due to the transitory
nature of some websites and frequent changes in fees and other similar information, it is
possible that such information may not be current at the time you read this text. The website
xx Preface
of the U.S. Patent and Trademark Office (USPTO), www.uspto.gov, provides current fee
and address information. Similarly, the website of the Copyright Office, www.copyright.
gov, provides up-to-date information for frequently changing topics and fees. Note that
figures and statistics given in the text for USPTO and Copyright Office workloads are for
fiscal years (rather than calendar years), which end on September 30.
Note to readers regarding Putting It Into Words Assignments

Although the Putting It Into Words section in each chapter requires students to draft expla-
nations, letters, and portions of letters, any document that provides legal advice must be
signed by an attorney. Thus, the Putting It Into Words assignments often anticipate that
students will be preparing the first drafts of certain letters and documents, which will then
be signed by supervising attorneys.
Note to readers regarding the America Invents Act (AIA)

The most significant change to patent law was enacted on September 16, 2011. The
Leahy-Smith America Invents Act changed numerous patent laws, processes, and fees.
Readers should thus review the USPTO website for changes in regulations, fees, and so on
under the AIA, which may change over time.
Note to readers regarding the use of terms for natural persons, corporate
entities, and the like
Pursuant to 1 U.S.C. § 1, as well as other federal statutes, including the Trademark Act,
15 U.S.C. § 1127, the word “person” in any applicable usage and context in this book
includes not only natural persons but also “juristic persons,” such as corporations and other
entities. Thus, throughout this text, when references are made to “persons” and “individuals”
filing various documents, such as trademark, copyright, and patent applications, those refref-
erences include entities as well (and vice versa).
SUPPLEMENTAL TEACHING AND LEARNING MATERIALS

Instructor Companion Site
The online Instructor Companion Site provides the following resources:
Instructor’s Manual with Test Bank

Written by the author of the text, the Instructor’s Manual contains suggested syllabi, lecture
notes, answers to all text discussion and Internet questions, useful websites, and a test bank
with more than 650 suggested test questions.
PowerPoint Presentations
Customizable Microsoft PowerPoint® Presentations focus on key points for each chapter.
(Microsoft PowerPoint® is a registered trademark of the Microsoft Corporation.)
Cengage Learning Testing Powered by Cognero is a flexible, online

system that allows you to:
• Author, edit, and manage test bank content from multiple Cengage Learning solutions
• Create multiple test versions in an instant
• Deliver tests from your LMS, your classroom or wherever you want
Start right away!

Cengage Learning Testing Powered by Cognero works on any operating system or browser.
• No special installs or downloads needed
• Create tests from school, home, the coffee shop – anywhere with Internet access
Preface xxi
What will you find?
• Simplicity at every step. A desktop-inspired interface features drop-down menus

and familiar, intuitive tools that take you through content creation and management
with ease.
• Full-featured test generator. Create ideal assessments with your choice of
15 question types (including true/false, multiple choice, opinion scale/Likert, and
essay). Multi-language support, an equation editor and unlimited metadata help
ensure your tests are complete and compliant.
• Cross-compatible capability. Import and export content into other systems.
To access additional course materials, please go to login.cengage.com, then use your
SSO (single sign on) login to access the materials.
New: MindTap (available for separate purchase)

MindTap Paralegal for Intellectual Property: The Law of Trademarks, Copyrights, Patents and
Trade Secrets, 5th edition is a personalized teaching experience with relevant assignments
that guide students to analyze, apply, and improve thinking, allowing instructors to measure
skills and outcomes with ease.
• Personalize Teaching. Personalize teaching with a Learning Path that is built with
key student objectives. Instructors control what students see and when they see it.
Instructors can use the Learning Path as-is or match to the syllabus exactly—hiding,
rearranging, adding, and creating content.
• Guide Students. A unique learning path of relevant readings, multimedia and other
activities that moves students up the learning taxonomy from basic knowledge and
comprehension to analysis and application.
• Promote Better Outcomes. Empower instructors and motivate students with analytics
and reports that provide a snapshot of class progress, time in course, engagement and
completion rates.
Student Companion Site

The online Student Companion Site, which includes the Appendices to the text, can be
accessed via www.cengagebrain.com.
ACKNOWLEDGMENTS
No text is the product solely of its author. Many individuals contributed significantly to
the development of this text. As always, my first thoughts go to Susan M. Sullivan, former
Program Director of the Paralegal Program at the University of San Diego. Sue gave me my
first opportunity to teach and has always provided support and encouragement. She is a
respected colleague and valued friend.
My current Program Director, Corey Brooks of the Paralegal Studies Program at
Georgetown University in Washington, D.C., continually displays enthusiasm and passion
for education and the paralegal profession. He has been of invaluable assistance and a
tremendous source of encouragement.
Special thanks to the reviewers who evaluated the manuscript on behalf of the publisher
and provided clear and concise analysis. Their comments and suggestions were of great
assistance.
W. Bruce Davis Michelle Miller
University of Cincinnati, Clermont College Quinnipiac University
Cincinnati, OH Hamden, CT
Marion Tuttle
New Jersey Institute of Technology
Newark, NJ
Finally, my most sincere appreciation goes to the following individuals at Cengage
Learning, who provided guidance and support throughout the development of this text:
Matt Seeley, Erin Brennan, Katie McGuire, Melissa Riveglia, Anne Orgren, and Betty
Dickson. Thank you also to Aravinda Kulasekar Doss and her team at Lumina Datamatics
Ltd. for its publishing services. Last, but of course, not least, deepest thanks and love go
to my husband, Don, and our children, Meaghan, Elizabeth, Patrick, and Robert, for their
amazing patience and understanding while I worked on this text.
Much of the basic information in this text relating to trademarks, copyrights, and pat-
ents is from the websites of the U.S. Patent and Trademark Office and the U.S. Copyright
Office, and the author wishes to acknowledge these agencies. No copyright is claimed in
any of the materials or forms of these agencies, including but not limited to Exhibits 2–3,
3–4, 4–1, 4–2, 4–3, 4–4, 4–5, 4–6, 4–8, 4–9, 5–4, 6–1, 8–1, 13–3, 18–1, 18–2, 18–3,
18–4, 18–6, 18–7, 19–2, Appendix D: Forms1 through 7, 9 and 13, and Exhibit E.
xxii
SELECTED EXHIBITS
EXHIBIT 2–3 History of Trademarks 20
EXHIBIT 2–6 Types of Marks 23
T
EXHIBIT 2–7 Timeline for Intent-to-Use Applications 24
EXHIBIT 2–9 Categories of Marks 30
EXHIBIT 2–10 Protectable Matter 34
EXHIBIT 2–13 Matter Excluded from Protection 39
EXHIBIT 2–14 Helpful USPTO T Telephone Numbers 39
EXHIBIT
EXHIBIT 3–2 Trademark
Trademark Data Sheet (U.S. Applicant) 46
EXHIBIT 3–4 USPTO Trademark Search Strategy 51
EXHIBIT 4–1 List of International Classes 63
EXHIBIT 4–2 Samples of Identifications of Goods and Services 66
EXHIBIT 4–3 Declaration for Trademark Application 69
EXHIBIT 4–4 Schedule of USPTO Filing Fees (trademark matters)
as of October 1, 2015 72
EXHIBIT 4–5 Comparison of Marks Alleged to be Confusingly Similar and
Action T Taken by USPTO and Courts 77
EXHIBIT 4–6 Trademark Official Gazette 80
EXHIBIT 4–7 Timeline for ITU Application 82
EXHIBIT 4–8 Trademark Application Checklist 83
EXHIBIT 4–9 Trademark Registration Certificate 85
EXHIBIT 4–10 Trademark Prosecution Flowchart 86
EXHIBIT 5–1 Dates for Maintenance of Trademarks 96
EXHIBIT 5–2 Trademark Usage Guide 101
EXHIBIT 5–3 Assignment of Trademark 104
EXHIBIT 5–4 USPTO Recordation Cover Sheet (Trademarks) 106
EXHIBIT 5–5 Trademark License Agreement 108
EXHIBIT 6–1 USPTO Form for Petition to Cancel Trademark Registration 121
EXHIBIT 6–2 Anatomy of an Infringement Case 129
EXHIBIT 6–3 Case Study: Food Fights 131
EXHIBIT 6–4 Cease and Desist Letter 134
EXHIBIT 7–1 Remedies for Cybersquatting and Misuse of Domain Names 155
EXHIBIT 8–1 Designation of Domestic Representative 169
EXHIBIT 8–2 Letter to Client Advising of Foreign Priority Date 173
xxiii
xxiv Selected Exhibits
EXHIBIT 8–3 Comparison of EUTM and Madrid Protocol Registrations 178

EXHIBIT 11–1 Performance Rights Relating to Music 220
EXHIBIT 12–1 Assignment of Copyright 240
EXHIBIT 12–2 Copyright Duration 244
EXHIBIT 13–1 Copyright Questionnaire 253
EXHIBIT 13–2 Copyright Notice Requirements 263
EXHIBIT 13–3 Location of Copyright Notices (37 C.F.R. § 201.20 (2015)) 265
EXHIBIT 14–1 T T
Top Ten Copyright Infringement Myths and Rules for Students 275
EXHIBIT 14–2 That’s Entertainment! 284
EXHIBIT 17–1 Famous U.S. Patents 339
EXHIBIT 17–2 Comparison of Utility, Design, and Plant Patents 350
EXHIBIT 18–1 Claims for Utility Patent (U.S. Patent No. 6,929,573) 370
EXHIBIT 18–2 Utility Patent Application Transmittal 373
EXHIBIT 18–3 Schedule of Patent Fees (as of November 1, 2015) 375
EXHIBIT 18–4 Information Disclosure Statement by Applicant (Partial) 376
EXHIBIT 18–5 Patent Prosecution Flowchart 382
EXHIBIT 18–6 Issued Patent 383
EXHIBIT 18–7 Patent Maintenance Fees 394
EXHIBIT 19–1 Patent Assignment 403
EXHIBIT 19–2 Recordation Form Cover Sheet (Patents) 404
EXHIBIT 21–1 PCT Timeline 448
EXHIBIT 21–2 The PCT Process in a Nutshell 449
EXHIBIT 24–1 Intellectual Property Audit Questionnaire 506
PART I
Introduction to Intellectual
Property
Chapter 1 Introduction to Intellectual Property Law 3
1 Introduction to Intellectual
Property Law
Chapter Objectives
After reading this chapter, you should be able to:
• Identify the four types of intellectual property.

• Explain the rationale for the protection of intellectual property.
• Understand how rights to intellectual property arise.
• Identify the roles of the USPTO and Copyright Office.
• Understand the functions of international organizations such as INTA and
WIPO and identify the treaties that protect intellectual property.
Chapter Overview
Intellectual property law protects the results of human creative endeavor.
Intellectual property is generally thought to comprise four separate fields
of law: trademarks, copyrights, patents, and trade secrets. A trademark is a
word, name, symbol, or device used to identify and distinguish one’s goods
or services and to indicate their source. Rights in trademarks are created by
use of a mark; registration with the U.S. Patent and Trademark Office (USPTO)
is not required, although it offers certain advantages. Copyright protects
original works of authorship, including literary, musical, dramatic, artistic, and
other works. Just as trademarks are protected from the moment of their
first public use, copyright exists from the moment of creation of a work in
fixed form; registration of a copyright with the U.S. Copyright Office, while
affording certain benefits, is not required. A patent is a grant from the U.S.
government that permits its owner to exclude others from making, selling,
4 PART I Introduction to Intellectual Property
using, or importing an invention. Patents exist only upon issuance by the USPTO.
A trade secret is any information that derives economic value from not being
known to others and is the subject of reasonable efforts to maintain its secrecy.
No registration or other formalities are required to create a trade secret, and trade
secrets endure as long as reasonable efforts are made to protect their secrecy.
INTELLECTUAL PROPERTY LAW BASICS
Intellectual Property Defined

Real property There are three distinct types of property that individuals and companies can own: real
Refers to land or real estate property refers to land or real estate; personal property refers to specific items and things
that can be identified, such as jewelry, cars, and artwork; and intellectual property refers
Personal property to the fruits or product of human creativity, including literature (i.e., anything in written
form, from books to blogs), advertising slogans, songs, or new inventions. Thus, property
Refers to specific items and that is the result of thought, namely, intellectual activity, is called intellectual property
things that can be identified,
such as jewelry, cars, and
(IP). In some foreign countries, intellectual property (especially patents and trademarks) is
artwork referred to as industrial property.
Many of the rights of ownership common to real and personal property are also common
Intellectual property (IP) to intellectual property. Intellectual property can be bought, sold, and licensed. Similarly, it
can be protected against theft or infringement by others. Nevertheless, there are some restric-
The result or product of
tions on use. For example, if you were to purchase the latest bestseller by John Grisham, you
human creativity, including
trademarks, copyrights, would be entitled to read the book, sell it to another, or give it away. You would not, how-
and inventions; generally, ever, be entitled to make photocopies of the book and then distribute and sell those copies to
intellectual property consists others. Those rights are retained by the author of the work and are protected by copyright law.
of the fields of trademarks,
copyrights, patents, and trade
secrets The Rationale for Protection of
Industrial property Intellectual Property
The term used in some Intellectual property is a field of law that aims at protecting the knowledge created through
foreign countries to refer to human effort in order to stimulate and promote further creativity. Authors who write books
intellectual property, especially and musicians who compose songs would be unlikely to engage in further creative effort
trademarks and patents
unless they could realize profit from their endeavors. If their work could be misappropriated
and sold by others, they would have no incentive to create further works. Pharmaceutical
companies would not invest millions of dollars into research and development of new drugs
unless they could be assured that their inventions would enable them to recover these costs
and develop additional drugs. Thus, not only the creators of intellectual property but the
public as well benefit from protecting intellectual property.
On the other hand, if the owner of intellectual property is given complete and perpetual
rights to his or her invention or work, the owner would have a monopoly and be able to
charge excessive prices for the invention or work, which would harm the public. Intellec-
tual property law attempts to resolve these conflicting goals so that owners’ rights to reap
the rewards of their efforts are balanced against the public need for a competitive market-
place. Thus, for example, under federal law, a patent for a useful invention will last for only
20 years from the date an application for the patent is filed with the USPTO. After that
period of time, the patent expires, and anyone is free to produce and sell the product.
TYPES OF INTELLECTUAL PROPERTY

The term intellectual property is usually thought of as comprising four separate, but often
overlapping, legal fields: trademarks, copyrights, patents, and trade secrets. Although each
of these areas will be discussed in detail in the chapters that follow, a brief introduction to
CHAPTER 1 Introduction to Intellectual Property Law 5
each discipline is helpful. (See chart on inside front and back covers of text comparing and
contrasting the various types of intellectual property.)
Trademarks and Service Marks

What Is Protectable. A trademark or service mark is a word, name, symbol, or device
Trademark used to indicate the source, quality, and ownership of a product or service. A trademark
is used in the marketing of a product (such as REEBOK® for shoes), while a service mark
A word, logo, phrase, or device
used to indicate the source, typically identifies a service (such as STARBUCKS® for retail store services, Exhibit 1–1).
quality, and ownership of a A trademark or service mark identifies and distinguishes the products or services of one
product or service; technically, person from those of another.
trademark refers to a mark In addition to words, trademarks can also consist of slogans (such as I’M LOVIN’ IT®
that identifies a product, while
service mark refers to a mark for McDonald’s food products, Exhibit 1–2), designs (such as the familiar “swoosh” that iden-
that identifies services tifies Nike products), or sounds (such as the distinctive giggle of the Pillsbury Doughboy).
Trademarks provide guarantees of quality and consistency of the product or service they
Service mark identify. Thus, upon encountering the golden arches that identify a McDonald’s restaurant,
consumers understand the “Big Mac” they purchase in Chicago will be the same quality as
A word, name, symbol, or
device used to indicate the
one purchased in Seattle.
source, quality, and ownership Companies expend a great deal of time, effort, and money in establishing consumer
of a service recognition of and confidence in their marks. Yet not all words, phrases, or symbols are
entitled to protection as trademarks. A chain of stores that sells clothing could not obtain a
registered trademark for “Clothing Goods” inasmuch as the name is generic, yet GAP® is a
nationally recognized mark for the retail sale of clothing. Marks may not be protectable if they
are generic in nature or merely descriptive of the type of products or services they identify.
Generally, marks that are protectable are those that are coined (such as KODAK®), arbitrary
(such as SHELL® for gasoline), or suggestive (such as STAPLES® for office supplies).
Federal Registration of Trademarks. Interstate use of trademarks is governed by

federal law, namely, the U.S. Trademark Act (also called the Lanham Act), found at 15
U.S.C. §§ 1051 et seq. (See Appendix E.) Additionally, trademarks are provided for in all
50 states so that marks that cannot be federally registered with the USPTO because they are
not used in interstate commerce can be registered in the state in which they are used.
In the United States, trademarks are generally protected from their date of first public use.
Registration of a mark is not required to secure protection for a mark, although it offers numer-
ous advantages, such as allowing the registrant to bring an action in federal court for infringe-
ment of the mark. Applications for federal registration of trademarks are made with the USPTO.
Registration is a fairly lengthy process, generally taking anywhere from 10 to 24 months or pos-
sibly longer. The filing fee is $225 per mark per class of goods or services covered by the mark if
the application is filed electronically and certain other requirements are met.
EXHIBIT 1–1 Starbucks mark EXHIBIT 1–2 McDonald’s mark

Source: Starbucks. Source: McDonald’s Corporation.
A trademark registration is valid for 10 years and may be renewed for additional
10-year periods thereafter as long as the mark is in use in interstate commerce. Additionally,
registrants are required to file an affidavit with the USPTO between the fifth and sixth years
after registration and every 10 years to verify the mark is in continued use. Marks not in use
are then available to others.
Trademarks are among the most visible items of intellectual property, and it has been esti-
mated that the average person in the United States encounters approximately 1,500 different
trademarks each day and 30,000 if one visits a supermarket. A properly selected, registered,
and protected mark can be of great value to a company or individual desiring to establish and
expand market share. There is perhaps no better way to maintain a strong position in the mar-
ketplace than to build goodwill and consumer recognition in the identity selected for products
and services and then to protect that identity under federal trademark law.
Copyrights
Copyright What Is Protectable. Copyright is a form of protection governed exclusively by fed-
eral law (17 U.S.C. §§ 101 et seq.) granted to the authors of original works of authorship,
Right protecting original
works of authorship, including
including literary, dramatic, musical, artistic, and certain other works. (See Appendix E.)
literary, musical, dramatic, Thus, books, songs, plays, jewelry, movies, sculptures, paintings, and choreographic works
artistic, and other works, from are all protectable. Computer software is also protectable by copyright.
unauthorized reproduction, Copyright protection is available for more than merely serious works of fiction or art.
sale, performance, distribution,
or display
Marketing materials, advertising copy, and cartoons are also protectable. Copyright is avail-
able for original works; no judgment is made about their literary or artistic quality. Never-
theless, certain works are not protectable by copyright, such as titles, names, short phrases,
or lists of ingredients. Similarly, ideas, methods, and processes are not protectable by copy-
right, although the expression of those ideas is.
Copyright protection exists automatically from the time a work is created in fixed form.
Thus, similar to trademark law, securing a registration for a work (with the U.S. Copyright
Office) is not required for a work to be protected, although registration does provide signif
signif-
icant advantages, such as establishing a public record of the copyright claim and providing a
basis upon which an infringement suit may be brought in federal court and in which statu-
tory damages and attorneys’ fees may be recovered.
The owner of a copyright has the right to reproduce the work, prepare derivative works
based on the original work (such as a sequel to the original), distribute copies of the work,
and to perform and display the work. Generally, violations of such rights are protectable
by infringement actions. Nevertheless, some uses of copyrighted works are considered “fair
use” and do not constitute infringement, such as use of an insignificant portion of a work
for noncommercial purposes or parody of a copyrighted work.
Federal Registration of Copyrights. Neither publication nor registration of a work

is required for copyright protection, inasmuch as works are protected under federal copy-
right law from the time of their creation in a fixed form. Registration, however, is inexpen-
sive, requiring only a $35 filing fee (for applications filed electronically), and the process is
expeditious. In most cases, the Copyright Office processes electronically filed applications
in about three to eight months.
Generally, copyrighted works are automatically protected from the moment of their
creation for a term enduring for the author’s life plus an additional 70 years after the author’s
death. After that time, the work will fall into the public domain and may be reproduced,
distributed, or performed by anyone. The policy underlying the long period of copyright
protection is that it may take several years for a painting, book, or opera to achieve its true
value, and, thus, authors should receive a length of protection that will enable the work to
appreciate to its greatest extent.
Patents
Patent What Is Protectable. A patent is a grant from the U.S. government that permits its
owner to prevent others from making, using, importing, or selling an invention. There are
A grant from the U.S. three types of patents: utility patents, which are the most common patents and which cover
government permitting its
owner to exclude others from
useful inventions and discoveries (such as the typewriter, the automobile, and genetically
making, selling, using, or altered mice); design patents, which cover new, original, and ornamental designs for articles
importing an invention for a (such as furniture); and plant patents, which cover new and distinct asexually reproduced
limited period of time plant varieties (such as hybrid flowers or trees).
Patent protection is available only for useful, novel, and nonobvious inventions.
Generally, patent law prohibits the patenting of an invention that is merely an insignificant
addition to or minor alteration of something already known. Moreover, some items cannot
be protected by patent, such as pure scientific principles.
Federal Registration of Patents. Patents are governed exclusively by federal law 35

U.S.C. §§ 100 et seq. (See Appendix E.) To obtain a patent, an inventor must file an appli-
cation with the USPTO (the same agency that issues trademark registrations) that fully
describes the invention. Patent prosecution is expensive, time-consuming, and complex.
Costs can run into the thousands of dollars, and it generally takes more than two years for
the USPTO to issue a patent.
Patent protection exists for 20 years from the date of filing of an application for utility
patents (assuming that certain fees are paid to maintain the patent in force) and plant pat-
ents and 15 years from the date of grant for design patents. After this period of time, the
invention falls into the public domain and may be used by any person without permission.
Patents promote the public good in that patent protection incentivizes inventors. In
return for fully describing the invention in the patent application, the inventor is granted
an exclusive but limited period of time within which to exploit the invention. After the
patent expires, any member of the public is free to use, manufacture, or sell the invention.
Thus, patent law strikes a balance between the need to protect inventors and the need to
allow public access to important discoveries.
Trade Secrets
Trade secret What Is Protectable. A trade secret consists of any information that derives economic
value from not being known to the public and that is subject to reasonable efforts to main-
Any valuable business
information that is not known tain its secrecy. There is no limit to the type of information that can be protected as trade
to others and is subject to secrets; recipes, marketing plans, financial projections, and methods of conducting business
reasonable efforts to maintain can all constitute trade secrets. There is no requirement that a trade secret be unique or
its secrecy complex; thus, even something as simple and nontechnical as a list of customers can qualify
as a trade secret as long as it affords its owner a competitive advantage and is not common
knowledge.
If trade secrets were not protectable, companies would have no incentive to invest time,
money, and effort in research and development that ultimately benefits the public. Trade
secret law thus promotes the development of new methods and processes of doing business
in the marketplace.
Protection of Trade Secrets. Although trademarks, copyrights, and patents are all
subject to extensive statutory schemes for their registration, there is no equivalent federal
law registration system for trade secrets, and no formalities are required to obtain rights to
trade secrets. Trade secrets are generally protectable under various state statutes and cases,
by the new federal Defend Trade Secrets Act of 2016 (passed to allow victims of trade
secret misappropriation to bring an action for such in federal court), and by contractual
agreements between parties. For example, employers often require employees to sign con-
fidentiality agreements in which employees agree not to disclose proprietary information
owned by the employer.
If properly protected, trade secrets may last forever. On the other hand, if companies
fail to take reasonable measures to maintain the secrecy of their information, trade secret
protection may be lost. Thus, disclosure of the information should be limited to those with
a “need to know” it so as to perform their duties; confidential information should be kept
in secure or restricted areas; and employees with access to proprietary information should
Nondisclosure agreement sign nondisclosure agreements. If such measures are taken, a trade secret can be protected
in perpetuity.
An agreement requiring a
party to maintain information
Another method by which companies protect valuable information is by requiring
in confidence; also called employees to sign agreements promising not to compete with the employer after leaving the
confidentiality agreement job. Such covenants are strictly scrutinized by courts, but in most states, if they are reason-
able in regard to time, scope, and subject matter, they are enforceable.
Other Intellectual Property Rights

Although the most common types of intellectual property are trademarks, copyrights, pat-
ents, and trade secrets, other intellectual property rights exist and will be discussed in the
chapters that follow. Some of these rights include semiconductor chip protection, plant
variety protection, the right of publicity, and rights relating to unfair competition, includ-
ing passing off, misappropriation, and false advertising.
Additionally, intellectual property rights often intersect and overlap. Thus, the
formula for Coca-Cola is a trade secret, while the distinctive script in which the words
COCA-COLA ® are displayed is a trademark. Generally, computer programs may be
protectable under copyright law, patent law, and as trade secrets, while the name for a com-
puter program, such as WINDOWS®, qualifies for trademark protection. Jewelry may be
protected both under copyright and design patent law. Legal practitioners in the field of
intellectual property law must fully understand how the various types of intellectual prop-
erty intersect so that clients can achieve the widest possible scope of protection. For exam-
ple, although an item of jewelry can be protected as a design patent, securing a patent is
complex and expensive. Moreover, a design patent lasts only 15 years from the date of grant
of the patent. In contrast, securing copyright protection for the same article of jewelry is
easy and inexpensive. More importantly, copyright protection endures during the life of
the work’s creator and for 70 years thereafter. Trade secrets that are properly protected can
endure perpetually. Thus, intellectual property owners need to consider the complementary
relationships among trademark, copyright, patent, and trade secrets law so as to obtain the
broadest possible protection for their assets.
AGENCIES RESPONSIBLE FOR INTELLECTUAL

PROPERTY REGISTRATION
U.S. Patent and Trademark Office

United States Patent and The agency charged with granting patents and registering trademarks is the U.S. Patent
Trademark Office (USPTO) and Trademark Office (USPTO), one of several bureaus or agencies within the U.S.
The agency within the Department of Commerce. The USPTO, founded more than 200 years ago, employs
Department of Commerce more than 12,000 employees and is presently located in several buildings at its cam-
charged with registering pus in Alexandria, Virginia. Mailing addresses vary depending on whether the matter
trademarks and granting
relates to patents or trademarks. The USPTO is physically located at 600 Dulany Street,
patents
Alexandria, Virginia 22314. Its website is www.uspto.gov. The USPTO website offers a
wealth of information, including helpful information about trademarks and patents, fee
schedules, informational videos, forms, and the ability to search and apply for trademarks
and patents. Since 1991, under the Omnibus Budget Reconciliation Act, the USPTO
has operated in much the same way as a private business, providing valued products and
services to customers in exchange for fees that are used to fully fund USPTO operations.
It uses no taxpayer funds.
The USPTO is one of the busiest of all government agencies, and as individuals and
companies continue to value the importance of intellectual property assets, greater demands
are being made on the USPTO. For example, from 2010 to 2015, the number of trademark
applications received by the USPTO increased by 37 percent, and the number of patent
applications received increased 21 percent. In 2015, the USPTO issued 322,448 patents
and registered 208,660 trademarks.
Legislation passed in 1997 established the USPTO as a performance-based organiza-
tion that is managed by professionals, resulting in the creation of a new political position,
Under Secretary of Commerce for Intellectual Property and Director of the USPTO.
Changing the USPTO from a mere governmental agency to a governmental corpora-
tion made the USPTO equivalent to other similar organizations, such as the Tennes-
see Valley Authority and the Federal Deposit Insurance Corporation. Performance-based
organizations have considerable flexibility in personnel matters and set specific goals and
objectives to achieve. In brief, the USPTO operates more like a business with greater
autonomy over its budget, hiring, and procurement. Additionally, the USPTO website’s
searchable database includes information about all U.S. patents from the first patent
issued in 1790 to the most recent, with full information for all patents since 1976 and
the text and images of more than four million pending and registered federal trademarks.
Users can view, download, and print the images of these patents and trademarks. The
USPTO has successfully completed its transition from paper to electronic filing for both
trademarks and patents. Nearly 100 percent of all trademark and patent applications were
filed electronically in 2015.
The USPTO is led by the Under Secretary of Commerce for Intellectual Property and
Director of the U.S. Patent and Trademark Office (the “Director”), who is appointed by the
president of the United States. The Secretary of Commerce appoints a Commissioner for
patents and a Commissioner for trademarks.
Cases relating to IP law are published in a variety of sources. One excellent reporter
is United States Patent Quarterly (U.S.P.Q.), covering IP cases (relating to patents, trade-
marks, copyrights, and trade secrets) from 1929 to 1986, and U.S.P.Q.2d and U.S.P.Q.3d,
covering IP cases since 1987. In addition to publishing various federal cases relating to
patents and trademarks, this set, published by Bloomberg BNA, also publishes admin-
istrative decisions of the Commissioner of Patents and Trademarks. Subscribers to the
set receive weekly advance sheets with the most current cases; bound volumes are issued
quarterly. Most law firms that specialize in IP work subscribe to this set. The set is also
available through LexisNexis and Bloomberg Law, the computer-assisted legal research
systems.
Additionally, numerous cases are available through the USPTO website.
Library of Congress
Library of Congress The Library of Congress, sometimes referred to as “Jefferson’s Legacy,” was established in
1800 as a legislative library. It is America’s oldest, national cultural institution and is the
The agency charged with largest library in the world. Thomas Jefferson is considered the founder of the Library of
examining copyright
applications, issuing
Congress, and his personal library is at the heart of the library, inasmuch as in 1814 the
registrations, and maintaining library’s original holdings of 3,000 volumes were burned by the British, and the next year
copyright deposits Jefferson sold his personal library collection of 6,487 volumes to the Library of Congress
for $23,950.
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DANCE ON STILTS AT THE GIRLS’ UNYAGO, NIUCHI
Newala, too, suffers from the distance of its water-supply—at least

the Newala of to-day does; there was once another Newala in a lovely
valley at the foot of the plateau. I visited it and found scarcely a trace
of houses, only a Christian cemetery, with the graves of several
missionaries and their converts, remaining as a monument of its
former glories. But the surroundings are wonderfully beautiful. A
thick grove of splendid mango-trees closes in the weather-worn
crosses and headstones; behind them, combining the useful and the
agreeable, is a whole plantation of lemon-trees covered with ripe
fruit; not the small African kind, but a much larger and also juicier
imported variety, which drops into the hands of the passing traveller,
without calling for any exertion on his part. Old Newala is now under
the jurisdiction of the native pastor, Daudi, at Chingulungulu, who,
as I am on very friendly terms with him, allows me, as a matter of
course, the use of this lemon-grove during my stay at Newala.
FEET MUTILATED BY THE RAVAGES OF THE “JIGGER”
(Sarcopsylla penetrans)
The water-supply of New Newala is in the bottom of the valley,

some 1,600 feet lower down. The way is not only long and fatiguing,
but the water, when we get it, is thoroughly bad. We are suffering not
only from this, but from the fact that the arrangements at Newala are
nothing short of luxurious. We have a separate kitchen—a hut built
against the boma palisade on the right of the baraza, the interior of
which is not visible from our usual position. Our two cooks were not
long in finding this out, and they consequently do—or rather neglect
to do—what they please. In any case they do not seem to be very
particular about the boiling of our drinking-water—at least I can
attribute to no other cause certain attacks of a dysenteric nature,
from which both Knudsen and I have suffered for some time. If a
man like Omari has to be left unwatched for a moment, he is capable
of anything. Besides this complaint, we are inconvenienced by the
state of our nails, which have become as hard as glass, and crack on
the slightest provocation, and I have the additional infliction of
pimples all over me. As if all this were not enough, we have also, for
the last week been waging war against the jigger, who has found his
Eldorado in the hot sand of the Makonde plateau. Our men are seen
all day long—whenever their chronic colds and the dysentery likewise
raging among them permit—occupied in removing this scourge of
Africa from their feet and trying to prevent the disastrous
consequences of its presence. It is quite common to see natives of
this place with one or two toes missing; many have lost all their toes,
or even the whole front part of the foot, so that a well-formed leg
ends in a shapeless stump. These ravages are caused by the female of
Sarcopsylla penetrans, which bores its way under the skin and there
develops an egg-sac the size of a pea. In all books on the subject, it is
stated that one’s attention is called to the presence of this parasite by
an intolerable itching. This agrees very well with my experience, so
far as the softer parts of the sole, the spaces between and under the
toes, and the side of the foot are concerned, but if the creature
penetrates through the harder parts of the heel or ball of the foot, it
may escape even the most careful search till it has reached maturity.
Then there is no time to be lost, if the horrible ulceration, of which
we see cases by the dozen every day, is to be prevented. It is much
easier, by the way, to discover the insect on the white skin of a
European than on that of a native, on which the dark speck scarcely
shows. The four or five jiggers which, in spite of the fact that I
constantly wore high laced boots, chose my feet to settle in, were
taken out for me by the all-accomplished Knudsen, after which I
thought it advisable to wash out the cavities with corrosive
sublimate. The natives have a different sort of disinfectant—they fill
the hole with scraped roots. In a tiny Makua village on the slope of
the plateau south of Newala, we saw an old woman who had filled all
the spaces under her toe-nails with powdered roots by way of
prophylactic treatment. What will be the result, if any, who can say?
The rest of the many trifling ills which trouble our existence are
really more comic than serious. In the absence of anything else to
smoke, Knudsen and I at last opened a box of cigars procured from
the Indian store-keeper at Lindi, and tried them, with the most
distressing results. Whether they contain opium or some other
narcotic, neither of us can say, but after the tenth puff we were both
“off,” three-quarters stupefied and unspeakably wretched. Slowly we
recovered—and what happened next? Half-an-hour later we were
once more smoking these poisonous concoctions—so insatiable is the
craving for tobacco in the tropics.
Even my present attacks of fever scarcely deserve to be taken
seriously. I have had no less than three here at Newala, all of which
have run their course in an incredibly short time. In the early
afternoon, I am busy with my old natives, asking questions and
making notes. The strong midday coffee has stimulated my spirits to
an extraordinary degree, the brain is active and vigorous, and work
progresses rapidly, while a pleasant warmth pervades the whole
body. Suddenly this gives place to a violent chill, forcing me to put on
my overcoat, though it is only half-past three and the afternoon sun
is at its hottest. Now the brain no longer works with such acuteness
and logical precision; more especially does it fail me in trying to
establish the syntax of the difficult Makua language on which I have
ventured, as if I had not enough to do without it. Under the
circumstances it seems advisable to take my temperature, and I do
so, to save trouble, without leaving my seat, and while going on with
my work. On examination, I find it to be 101·48°. My tutors are
abruptly dismissed and my bed set up in the baraza; a few minutes
later I am in it and treating myself internally with hot water and
lemon-juice.
Three hours later, the thermometer marks nearly 104°, and I make
them carry me back into the tent, bed and all, as I am now perspiring
heavily, and exposure to the cold wind just beginning to blow might
mean a fatal chill. I lie still for a little while, and then find, to my
great relief, that the temperature is not rising, but rather falling. This
is about 7.30 p.m. At 8 p.m. I find, to my unbounded astonishment,
that it has fallen below 98·6°, and I feel perfectly well. I read for an
hour or two, and could very well enjoy a smoke, if I had the
wherewithal—Indian cigars being out of the question.
Having no medical training, I am at a loss to account for this state
of things. It is impossible that these transitory attacks of high fever
should be malarial; it seems more probable that they are due to a
kind of sunstroke. On consulting my note-book, I become more and
more inclined to think this is the case, for these attacks regularly
follow extreme fatigue and long exposure to strong sunshine. They at
least have the advantage of being only short interruptions to my
work, as on the following morning I am always quite fresh and fit.
My treasure of a cook is suffering from an enormous hydrocele which
makes it difficult for him to get up, and Moritz is obliged to keep in
the dark on account of his inflamed eyes. Knudsen’s cook, a raw boy
from somewhere in the bush, knows still less of cooking than Omari;
consequently Nils Knudsen himself has been promoted to the vacant
post. Finding that we had come to the end of our supplies, he began
by sending to Chingulungulu for the four sucking-pigs which we had
bought from Matola and temporarily left in his charge; and when
they came up, neatly packed in a large crate, he callously slaughtered
the biggest of them. The first joint we were thoughtless enough to
entrust for roasting to Knudsen’s mshenzi cook, and it was
consequently uneatable; but we made the rest of the animal into a
jelly which we ate with great relish after weeks of underfeeding,
consuming incredible helpings of it at both midday and evening
meals. The only drawback is a certain want of variety in the tinned
vegetables. Dr. Jäger, to whom the Geographical Commission
entrusted the provisioning of the expeditions—mine as well as his
own—because he had more time on his hands than the rest of us,
seems to have laid in a huge stock of Teltow turnips,[46] an article of
food which is all very well for occasional use, but which quickly palls
when set before one every day; and we seem to have no other tins
left. There is no help for it—we must put up with the turnips; but I
am certain that, once I am home again, I shall not touch them for ten
years to come.
Amid all these minor evils, which, after all, go to make up the
genuine flavour of Africa, there is at least one cheering touch:
Knudsen has, with the dexterity of a skilled mechanic, repaired my 9
× 12 cm. camera, at least so far that I can use it with a little care.
How, in the absence of finger-nails, he was able to accomplish such a
ticklish piece of work, having no tool but a clumsy screw-driver for
taking to pieces and putting together again the complicated
mechanism of the instantaneous shutter, is still a mystery to me; but
he did it successfully. The loss of his finger-nails shows him in a light
contrasting curiously enough with the intelligence evinced by the
above operation; though, after all, it is scarcely surprising after his
ten years’ residence in the bush. One day, at Lindi, he had occasion
to wash a dog, which must have been in need of very thorough
cleansing, for the bottle handed to our friend for the purpose had an
extremely strong smell. Having performed his task in the most
conscientious manner, he perceived with some surprise that the dog
did not appear much the better for it, and was further surprised by
finding his own nails ulcerating away in the course of the next few
days. “How was I to know that carbolic acid has to be diluted?” he
mutters indignantly, from time to time, with a troubled gaze at his
mutilated finger-tips.
Since we came to Newala we have been making excursions in all
directions through the surrounding country, in accordance with old
habit, and also because the akida Sefu did not get together the tribal
elders from whom I wanted information so speedily as he had
promised. There is, however, no harm done, as, even if seen only
from the outside, the country and people are interesting enough.
The Makonde plateau is like a large rectangular table rounded off
at the corners. Measured from the Indian Ocean to Newala, it is
about seventy-five miles long, and between the Rovuma and the
Lukuledi it averages fifty miles in breadth, so that its superficial area
is about two-thirds of that of the kingdom of Saxony. The surface,
however, is not level, but uniformly inclined from its south-western
edge to the ocean. From the upper edge, on which Newala lies, the
eye ranges for many miles east and north-east, without encountering
any obstacle, over the Makonde bush. It is a green sea, from which
here and there thick clouds of smoke rise, to show that it, too, is
inhabited by men who carry on their tillage like so many other
primitive peoples, by cutting down and burning the bush, and
manuring with the ashes. Even in the radiant light of a tropical day
such a fire is a grand sight.
Much less effective is the impression produced just now by the
great western plain as seen from the edge of the plateau. As often as
time permits, I stroll along this edge, sometimes in one direction,
sometimes in another, in the hope of finding the air clear enough to
let me enjoy the view; but I have always been disappointed.
Wherever one looks, clouds of smoke rise from the burning bush,
and the air is full of smoke and vapour. It is a pity, for under more
favourable circumstances the panorama of the whole country up to
the distant Majeje hills must be truly magnificent. It is of little use
taking photographs now, and an outline sketch gives a very poor idea
of the scenery. In one of these excursions I went out of my way to
make a personal attempt on the Makonde bush. The present edge of
the plateau is the result of a far-reaching process of destruction
through erosion and denudation. The Makonde strata are
everywhere cut into by ravines, which, though short, are hundreds of
yards in depth. In consequence of the loose stratification of these
beds, not only are the walls of these ravines nearly vertical, but their
upper end is closed by an equally steep escarpment, so that the
western edge of the Makonde plateau is hemmed in by a series of
deep, basin-like valleys. In order to get from one side of such a ravine
to the other, I cut my way through the bush with a dozen of my men.
It was a very open part, with more grass than scrub, but even so the
short stretch of less than two hundred yards was very hard work; at
the end of it the men’s calicoes were in rags and they themselves
bleeding from hundreds of scratches, while even our strong khaki
suits had not escaped scatheless.
NATIVE PATH THROUGH THE MAKONDE BUSH, NEAR

MAHUTA
I see increasing reason to believe that the view formed some time
back as to the origin of the Makonde bush is the correct one. I have
no doubt that it is not a natural product, but the result of human
occupation. Those parts of the high country where man—as a very
slight amount of practice enables the eye to perceive at once—has not
yet penetrated with axe and hoe, are still occupied by a splendid
timber forest quite able to sustain a comparison with our mixed
forests in Germany. But wherever man has once built his hut or tilled
his field, this horrible bush springs up. Every phase of this process
may be seen in the course of a couple of hours’ walk along the main
road. From the bush to right or left, one hears the sound of the axe—
not from one spot only, but from several directions at once. A few
steps further on, we can see what is taking place. The brush has been
cut down and piled up in heaps to the height of a yard or more,
between which the trunks of the large trees stand up like the last
pillars of a magnificent ruined building. These, too, present a
melancholy spectacle: the destructive Makonde have ringed them—
cut a broad strip of bark all round to ensure their dying off—and also
piled up pyramids of brush round them. Father and son, mother and
son-in-law, are chopping away perseveringly in the background—too
busy, almost, to look round at the white stranger, who usually excites
so much interest. If you pass by the same place a week later, the piles
of brushwood have disappeared and a thick layer of ashes has taken
the place of the green forest. The large trees stretch their
smouldering trunks and branches in dumb accusation to heaven—if
they have not already fallen and been more or less reduced to ashes,
perhaps only showing as a white stripe on the dark ground.
This work of destruction is carried out by the Makonde alike on the
virgin forest and on the bush which has sprung up on sites already
cultivated and deserted. In the second case they are saved the trouble
of burning the large trees, these being entirely absent in the
secondary bush.
After burning this piece of forest ground and loosening it with the
hoe, the native sows his corn and plants his vegetables. All over the
country, he goes in for bed-culture, which requires, and, in fact,
receives, the most careful attention. Weeds are nowhere tolerated in
the south of German East Africa. The crops may fail on the plains,
where droughts are frequent, but never on the plateau with its
abundant rains and heavy dews. Its fortunate inhabitants even have
the satisfaction of seeing the proud Wayao and Wamakua working
for them as labourers, driven by hunger to serve where they were
accustomed to rule.
But the light, sandy soil is soon exhausted, and would yield no
harvest the second year if cultivated twice running. This fact has
been familiar to the native for ages; consequently he provides in
time, and, while his crop is growing, prepares the next plot with axe
and firebrand. Next year he plants this with his various crops and
lets the first piece lie fallow. For a short time it remains waste and
desolate; then nature steps in to repair the destruction wrought by
man; a thousand new growths spring out of the exhausted soil, and
even the old stumps put forth fresh shoots. Next year the new growth
is up to one’s knees, and in a few years more it is that terrible,
impenetrable bush, which maintains its position till the black
occupier of the land has made the round of all the available sites and
come back to his starting point.
The Makonde are, body and soul, so to speak, one with this bush.
According to my Yao informants, indeed, their name means nothing
else but “bush people.” Their own tradition says that they have been
settled up here for a very long time, but to my surprise they laid great
stress on an original immigration. Their old homes were in the
south-east, near Mikindani and the mouth of the Rovuma, whence
their peaceful forefathers were driven by the continual raids of the
Sakalavas from Madagascar and the warlike Shirazis[47] of the coast,
to take refuge on the almost inaccessible plateau. I have studied
African ethnology for twenty years, but the fact that changes of
population in this apparently quiet and peaceable corner of the earth
could have been occasioned by outside enterprises taking place on
the high seas, was completely new to me. It is, no doubt, however,
correct.
The charming tribal legend of the Makonde—besides informing us
of other interesting matters—explains why they have to live in the
thickest of the bush and a long way from the edge of the plateau,
instead of making their permanent homes beside the purling brooks
and springs of the low country.
“The place where the tribe originated is Mahuta, on the southern
side of the plateau towards the Rovuma, where of old time there was
nothing but thick bush. Out of this bush came a man who never
washed himself or shaved his head, and who ate and drank but little.
He went out and made a human figure from the wood of a tree
growing in the open country, which he took home to his abode in the
bush and there set it upright. In the night this image came to life and
was a woman. The man and woman went down together to the
Rovuma to wash themselves. Here the woman gave birth to a still-
born child. They left that place and passed over the high land into the
valley of the Mbemkuru, where the woman had another child, which
was also born dead. Then they returned to the high bush country of
Mahuta, where the third child was born, which lived and grew up. In
course of time, the couple had many more children, and called
themselves Wamatanda. These were the ancestral stock of the
Makonde, also called Wamakonde,[48] i.e., aborigines. Their
forefather, the man from the bush, gave his children the command to
bury their dead upright, in memory of the mother of their race who
was cut out of wood and awoke to life when standing upright. He also
warned them against settling in the valleys and near large streams,
for sickness and death dwelt there. They were to make it a rule to
have their huts at least an hour’s walk from the nearest watering-
place; then their children would thrive and escape illness.”
The explanation of the name Makonde given by my informants is
somewhat different from that contained in the above legend, which I
extract from a little book (small, but packed with information), by
Pater Adams, entitled Lindi und sein Hinterland. Otherwise, my
results agree exactly with the statements of the legend. Washing?
Hapana—there is no such thing. Why should they do so? As it is, the
supply of water scarcely suffices for cooking and drinking; other
people do not wash, so why should the Makonde distinguish himself
by such needless eccentricity? As for shaving the head, the short,
woolly crop scarcely needs it,[49] so the second ancestral precept is
likewise easy enough to follow. Beyond this, however, there is
nothing ridiculous in the ancestor’s advice. I have obtained from
various local artists a fairly large number of figures carved in wood,
ranging from fifteen to twenty-three inches in height, and
representing women belonging to the great group of the Mavia,
Makonde, and Matambwe tribes. The carving is remarkably well
done and renders the female type with great accuracy, especially the
keloid ornamentation, to be described later on. As to the object and
meaning of their works the sculptors either could or (more probably)
would tell me nothing, and I was forced to content myself with the
scanty information vouchsafed by one man, who said that the figures
were merely intended to represent the nembo—the artificial
deformations of pelele, ear-discs, and keloids. The legend recorded
by Pater Adams places these figures in a new light. They must surely
be more than mere dolls; and we may even venture to assume that
they are—though the majority of present-day Makonde are probably
unaware of the fact—representations of the tribal ancestress.
The references in the legend to the descent from Mahuta to the
Rovuma, and to a journey across the highlands into the Mbekuru
valley, undoubtedly indicate the previous history of the tribe, the
travels of the ancestral pair typifying the migrations of their
descendants. The descent to the neighbouring Rovuma valley, with
its extraordinary fertility and great abundance of game, is intelligible
at a glance—but the crossing of the Lukuledi depression, the ascent
to the Rondo Plateau and the descent to the Mbemkuru, also lie
within the bounds of probability, for all these districts have exactly
the same character as the extreme south. Now, however, comes a
point of especial interest for our bacteriological age. The primitive
Makonde did not enjoy their lives in the marshy river-valleys.
Disease raged among them, and many died. It was only after they
had returned to their original home near Mahuta, that the health
conditions of these people improved. We are very apt to think of the
African as a stupid person whose ignorance of nature is only equalled
by his fear of it, and who looks on all mishaps as caused by evil
spirits and malignant natural powers. It is much more correct to
assume in this case that the people very early learnt to distinguish
districts infested with malaria from those where it is absent.
This knowledge is crystallized in the
ancestral warning against settling in the
valleys and near the great waters, the
dwelling-places of disease and death. At the
same time, for security against the hostile
Mavia south of the Rovuma, it was enacted
that every settlement must be not less than a
certain distance from the southern edge of the
plateau. Such in fact is their mode of life at the
present day. It is not such a bad one, and
certainly they are both safer and more
comfortable than the Makua, the recent
intruders from the south, who have made USUAL METHOD OF
good their footing on the western edge of the CLOSING HUT-DOOR
plateau, extending over a fairly wide belt of
country. Neither Makua nor Makonde show in their dwellings
anything of the size and comeliness of the Yao houses in the plain,
especially at Masasi, Chingulungulu and Zuza’s. Jumbe Chauro, a
Makonde hamlet not far from Newala, on the road to Mahuta, is the
most important settlement of the tribe I have yet seen, and has fairly
spacious huts. But how slovenly is their construction compared with
the palatial residences of the elephant-hunters living in the plain.
The roofs are still more untidy than in the general run of huts during
the dry season, the walls show here and there the scanty beginnings
or the lamentable remains of the mud plastering, and the interior is a
veritable dog-kennel; dirt, dust and disorder everywhere. A few huts
only show any attempt at division into rooms, and this consists
merely of very roughly-made bamboo partitions. In one point alone
have I noticed any indication of progress—in the method of fastening
the door. Houses all over the south are secured in a simple but
ingenious manner. The door consists of a set of stout pieces of wood
or bamboo, tied with bark-string to two cross-pieces, and moving in
two grooves round one of the door-posts, so as to open inwards. If
the owner wishes to leave home, he takes two logs as thick as a man’s
upper arm and about a yard long. One of these is placed obliquely
against the middle of the door from the inside, so as to form an angle
of from 60° to 75° with the ground. He then places the second piece
horizontally across the first, pressing it downward with all his might.
It is kept in place by two strong posts planted in the ground a few
inches inside the door. This fastening is absolutely safe, but of course
cannot be applied to both doors at once, otherwise how could the
owner leave or enter his house? I have not yet succeeded in finding
out how the back door is fastened.
MAKONDE LOCK AND KEY AT JUMBE CHAURO

This is the general way of closing a house. The Makonde at Jumbe
Chauro, however, have a much more complicated, solid and original
one. Here, too, the door is as already described, except that there is
only one post on the inside, standing by itself about six inches from
one side of the doorway. Opposite this post is a hole in the wall just
large enough to admit a man’s arm. The door is closed inside by a
large wooden bolt passing through a hole in this post and pressing
with its free end against the door. The other end has three holes into
which fit three pegs running in vertical grooves inside the post. The
door is opened with a wooden key about a foot long, somewhat
curved and sloped off at the butt; the other end has three pegs
corresponding to the holes, in the bolt, so that, when it is thrust
through the hole in the wall and inserted into the rectangular
opening in the post, the pegs can be lifted and the bolt drawn out.[50]
MODE OF INSERTING THE KEY
With no small pride first one householder and then a second

showed me on the spot the action of this greatest invention of the
Makonde Highlands. To both with an admiring exclamation of
“Vizuri sana!” (“Very fine!”). I expressed the wish to take back these
marvels with me to Ulaya, to show the Wazungu what clever fellows
the Makonde are. Scarcely five minutes after my return to camp at
Newala, the two men came up sweating under the weight of two
heavy logs which they laid down at my feet, handing over at the same
time the keys of the fallen fortress. Arguing, logically enough, that if
the key was wanted, the lock would be wanted with it, they had taken
their axes and chopped down the posts—as it never occurred to them
to dig them out of the ground and so bring them intact. Thus I have
two badly damaged specimens, and the owners, instead of praise,
come in for a blowing-up.
The Makua huts in the environs of Newala are especially
miserable; their more than slovenly construction reminds one of the
temporary erections of the Makua at Hatia’s, though the people here
have not been concerned in a war. It must therefore be due to
congenital idleness, or else to the absence of a powerful chief. Even
the baraza at Mlipa’s, a short hour’s walk south-east of Newala,
shares in this general neglect. While public buildings in this country
are usually looked after more or less carefully, this is in evident
danger of being blown over by the first strong easterly gale. The only
attractive object in this whole district is the grave of the late chief
Mlipa. I visited it in the morning, while the sun was still trying with
partial success to break through the rolling mists, and the circular
grove of tall euphorbias, which, with a broken pot, is all that marks
the old king’s resting-place, impressed one with a touch of pathos.
Even my very materially-minded carriers seemed to feel something
of the sort, for instead of their usual ribald songs, they chanted
solemnly, as we marched on through the dense green of the Makonde
bush:—
“We shall arrive with the great master; we stand in a row and have
no fear about getting our food and our money from the Serkali (the
Government). We are not afraid; we are going along with the great
master, the lion; we are going down to the coast and back.”
With regard to the characteristic features of the various tribes here
on the western edge of the plateau, I can arrive at no other
conclusion than the one already come to in the plain, viz., that it is
impossible for anyone but a trained anthropologist to assign any
given individual at once to his proper tribe. In fact, I think that even
an anthropological specialist, after the most careful examination,
might find it a difficult task to decide. The whole congeries of peoples
collected in the region bounded on the west by the great Central
African rift, Tanganyika and Nyasa, and on the east by the Indian
Ocean, are closely related to each other—some of their languages are
only distinguished from one another as dialects of the same speech,
and no doubt all the tribes present the same shape of skull and
structure of skeleton. Thus, surely, there can be no very striking
differences in outward appearance.
Even did such exist, I should have no time
to concern myself with them, for day after day,
I have to see or hear, as the case may be—in
any case to grasp and record—an
extraordinary number of ethnographic
phenomena. I am almost disposed to think it
fortunate that some departments of inquiry, at
least, are barred by external circumstances.
Chief among these is the subject of iron-
working. We are apt to think of Africa as a
country where iron ore is everywhere, so to
speak, to be picked up by the roadside, and
where it would be quite surprising if the
inhabitants had not learnt to smelt the
material ready to their hand. In fact, the
knowledge of this art ranges all over the
continent, from the Kabyles in the north to the
Kafirs in the south. Here between the Rovuma
and the Lukuledi the conditions are not so
favourable. According to the statements of the
Makonde, neither ironstone nor any other
form of iron ore is known to them. They have
not therefore advanced to the art of smelting
the metal, but have hitherto bought all their
THE ANCESTRESS OF
THE MAKONDE
iron implements from neighbouring tribes.
Even in the plain the inhabitants are not much
better off. Only one man now living is said to
understand the art of smelting iron. This old fundi lives close to
Huwe, that isolated, steep-sided block of granite which rises out of
the green solitude between Masasi and Chingulungulu, and whose
jagged and splintered top meets the traveller’s eye everywhere. While
still at Masasi I wished to see this man at work, but was told that,
frightened by the rising, he had retired across the Rovuma, though
he would soon return. All subsequent inquiries as to whether the
fundi had come back met with the genuine African answer, “Bado”
(“Not yet”).
BRAZIER
Some consolation was afforded me by a brassfounder, whom I

came across in the bush near Akundonde’s. This man is the favourite
of women, and therefore no doubt of the gods; he welds the glittering
brass rods purchased at the coast into those massive, heavy rings
which, on the wrists and ankles of the local fair ones, continually give
me fresh food for admiration. Like every decent master-craftsman he
had all his tools with him, consisting of a pair of bellows, three
crucibles and a hammer—nothing more, apparently. He was quite
willing to show his skill, and in a twinkling had fixed his bellows on
the ground. They are simply two goat-skins, taken off whole, the four
legs being closed by knots, while the upper opening, intended to
admit the air, is kept stretched by two pieces of wood. At the lower
end of the skin a smaller opening is left into which a wooden tube is
stuck. The fundi has quickly borrowed a heap of wood-embers from
the nearest hut; he then fixes the free ends of the two tubes into an
earthen pipe, and clamps them to the ground by means of a bent
piece of wood. Now he fills one of his small clay crucibles, the dross
on which shows that they have been long in use, with the yellow
material, places it in the midst of the embers, which, at present are
only faintly glimmering, and begins his work. In quick alternation
the smith’s two hands move up and down with the open ends of the
bellows; as he raises his hand he holds the slit wide open, so as to let
the air enter the skin bag unhindered. In pressing it down he closes
the bag, and the air puffs through the bamboo tube and clay pipe into
the fire, which quickly burns up. The smith, however, does not keep
on with this work, but beckons to another man, who relieves him at
the bellows, while he takes some more tools out of a large skin pouch
carried on his back. I look on in wonder as, with a smooth round
stick about the thickness of a finger, he bores a few vertical holes into
the clean sand of the soil. This should not be difficult, yet the man
seems to be taking great pains over it. Then he fastens down to the
ground, with a couple of wooden clamps, a neat little trough made by
splitting a joint of bamboo in half, so that the ends are closed by the
two knots. At last the yellow metal has attained the right consistency,
and the fundi lifts the crucible from the fire by means of two sticks
split at the end to serve as tongs. A short swift turn to the left—a
tilting of the crucible—and the molten brass, hissing and giving forth
clouds of smoke, flows first into the bamboo mould and then into the
holes in the ground.
The technique of this backwoods craftsman may not be very far
advanced, but it cannot be denied that he knows how to obtain an
adequate result by the simplest means. The ladies of highest rank in
this country—that is to say, those who can afford it, wear two kinds
of these massive brass rings, one cylindrical, the other semicircular
in section. The latter are cast in the most ingenious way in the
bamboo mould, the former in the circular hole in the sand. It is quite
a simple matter for the fundi to fit these bars to the limbs of his fair
customers; with a few light strokes of his hammer he bends the
pliable brass round arm or ankle without further inconvenience to
the wearer.
SHAPING THE POT
SMOOTHING WITH MAIZE-COB
CUTTING THE EDGE

FINISHING THE BOTTOM
LAST SMOOTHING BEFORE

BURNING
FIRING THE BRUSH-PILE

LIGHTING THE FARTHER SIDE OF
THE PILE
TURNING THE RED-HOT VESSEL
NYASA WOMAN MAKING POTS AT MASASI

Pottery is an art which must always and everywhere excite the
interest of the student, just because it is so intimately connected with
the development of human culture, and because its relics are one of
the principal factors in the reconstruction of our own condition in
prehistoric times. I shall always remember with pleasure the two or
three afternoons at Masasi when Salim Matola’s mother, a slightly-
built, graceful, pleasant-looking woman, explained to me with
touching patience, by means of concrete illustrations, the ceramic art
of her people. The only implements for this primitive process were a
lump of clay in her left hand, and in the right a calabash containing
the following valuables: the fragment of a maize-cob stripped of all
its grains, a smooth, oval pebble, about the size of a pigeon’s egg, a
few chips of gourd-shell, a bamboo splinter about the length of one’s
hand, a small shell, and a bunch of some herb resembling spinach.
Nothing more. The woman scraped with the
shell a round, shallow hole in the soft, fine
sand of the soil, and, when an active young
girl had filled the calabash with water for her,
she began to knead the clay. As if by magic it
gradually assumed the shape of a rough but
already well-shaped vessel, which only wanted
a little touching up with the instruments
before mentioned. I looked out with the
MAKUA WOMAN closest attention for any indication of the use
MAKING A POT. of the potter’s wheel, in however rudimentary
SHOWS THE a form, but no—hapana (there is none). The
BEGINNINGS OF THE embryo pot stood firmly in its little
POTTER’S WHEEL
depression, and the woman walked round it in
a stooping posture, whether she was removing
small stones or similar foreign bodies with the maize-cob, smoothing
the inner or outer surface with the splinter of bamboo, or later, after
letting it dry for a day, pricking in the ornamentation with a pointed
bit of gourd-shell, or working out the bottom, or cutting the edge
with a sharp bamboo knife, or giving the last touches to the finished
vessel. This occupation of the women is infinitely toilsome, but it is
without doubt an accurate reproduction of the process in use among
our ancestors of the Neolithic and Bronze ages.
There is no doubt that the invention of pottery, an item in human
progress whose importance cannot be over-estimated, is due to
women. Rough, coarse and unfeeling, the men of the horde range
over the countryside. When the united cunning of the hunters has
succeeded in killing the game; not one of them thinks of carrying
home the spoil. A bright fire, kindled by a vigorous wielding of the
drill, is crackling beside them; the animal has been cleaned and cut
up secundum artem, and, after a slight singeing, will soon disappear
under their sharp teeth; no one all this time giving a single thought
to wife or child.
To what shifts, on the other hand, the primitive wife, and still more
the primitive mother, was put! Not even prehistoric stomachs could
endure an unvarying diet of raw food. Something or other suggested
the beneficial effect of hot water on the majority of approved but
indigestible dishes. Perhaps a neighbour had tried holding the hard
roots or tubers over the fire in a calabash filled with water—or maybe
an ostrich-egg-shell, or a hastily improvised vessel of bark. They
became much softer and more palatable than they had previously
been; but, unfortunately, the vessel could not stand the fire and got
charred on the outside. That can be remedied, thought our
ancestress, and plastered a layer of wet clay round a similar vessel.
This is an improvement; the cooking utensil remains uninjured, but
the heat of the fire has shrunk it, so that it is loose in its shell. The
next step is to detach it, so, with a firm grip and a jerk, shell and
kernel are separated, and pottery is invented. Perhaps, however, the
discovery which led to an intelligent use of the burnt-clay shell, was
made in a slightly different way. Ostrich-eggs and calabashes are not
to be found in every part of the world, but everywhere mankind has
arrived at the art of making baskets out of pliant materials, such as
bark, bast, strips of palm-leaf, supple twigs, etc. Our inventor has no
water-tight vessel provided by nature. “Never mind, let us line the
basket with clay.” This answers the purpose, but alas! the basket gets
burnt over the blazing fire, the woman watches the process of
cooking with increasing uneasiness, fearing a leak, but no leak
appears. The food, done to a turn, is eaten with peculiar relish; and
the cooking-vessel is examined, half in curiosity, half in satisfaction
at the result. The plastic clay is now hard as stone, and at the same
time looks exceedingly well, for the neat plaiting of the burnt basket
is traced all over it in a pretty pattern. Thus, simultaneously with
pottery, its ornamentation was invented.
Primitive woman has another claim to respect. It was the man,
roving abroad, who invented the art of producing fire at will, but the
woman, unable to imitate him in this, has been a Vestal from the
earliest times. Nothing gives so much trouble as the keeping alight of
the smouldering brand, and, above all, when all the men are absent
from the camp. Heavy rain-clouds gather, already the first large
drops are falling, the first gusts of the storm rage over the plain. The
little flame, a greater anxiety to the woman than her own children,
flickers unsteadily in the blast. What is to be done? A sudden thought
occurs to her, and in an instant she has constructed a primitive hut
out of strips of bark, to protect the flame against rain and wind.
This, or something very like it, was the way in which the principle
of the house was discovered; and even the most hardened misogynist
cannot fairly refuse a woman the credit of it. The protection of the
hearth-fire from the weather is the germ from which the human
dwelling was evolved. Men had little, if any share, in this forward
step, and that only at a late stage. Even at the present day, the
plastering of the housewall with clay and the manufacture of pottery
are exclusively the women’s business. These are two very significant
survivals. Our European kitchen-garden, too, is originally a woman’s
invention, and the hoe, the primitive instrument of agriculture, is,
characteristically enough, still used in this department. But the
noblest achievement which we owe to the other sex is unquestionably
the art of cookery. Roasting alone—the oldest process—is one for
which men took the hint (a very obvious one) from nature. It must
have been suggested by the scorched carcase of some animal
overtaken by the destructive forest-fires. But boiling—the process of
improving organic substances by the help of water heated to boiling-
point—is a much later discovery. It is so recent that it has not even
yet penetrated to all parts of the world. The Polynesians understand
how to steam food, that is, to cook it, neatly wrapped in leaves, in a
hole in the earth between hot stones, the air being excluded, and
(sometimes) a few drops of water sprinkled on the stones; but they
do not understand boiling.
To come back from this digression, we find that the slender Nyasa
woman has, after once more carefully examining the finished pot,
put it aside in the shade to dry. On the following day she sends me
word by her son, Salim Matola, who is always on hand, that she is
going to do the burning, and, on coming out of my house, I find her
already hard at work. She has spread on the ground a layer of very
dry sticks, about as thick as one’s thumb, has laid the pot (now of a
yellowish-grey colour) on them, and is piling brushwood round it.
My faithful Pesa mbili, the mnyampara, who has been standing by,
most obligingly, with a lighted stick, now hands it to her. Both of
them, blowing steadily, light the pile on the lee side, and, when the
flame begins to catch, on the weather side also. Soon the whole is in a
blaze, but the dry fuel is quickly consumed and the fire dies down, so
that we see the red-hot vessel rising from the ashes. The woman
turns it continually with a long stick, sometimes one way and
sometimes another, so that it may be evenly heated all over. In
twenty minutes she rolls it out of the ash-heap, takes up the bundle
of spinach, which has been lying for two days in a jar of water, and
sprinkles the red-hot clay with it. The places where the drops fall are
marked by black spots on the uniform reddish-brown surface. With a
sigh of relief, and with visible satisfaction, the woman rises to an
erect position; she is standing just in a line between me and the fire,
from which a cloud of smoke is just rising: I press the ball of my
camera, the shutter clicks—the apotheosis is achieved! Like a
priestess, representative of her inventive sex, the graceful woman
stands: at her feet the hearth-fire she has given us beside her the
invention she has devised for us, in the background the home she has
built for us.
At Newala, also, I have had the manufacture of pottery carried on
in my presence. Technically the process is better than that already
described, for here we find the beginnings of the potter’s wheel,
which does not seem to exist in the plains; at least I have seen
nothing of the sort. The artist, a frightfully stupid Makua woman, did
not make a depression in the ground to receive the pot she was about
to shape, but used instead a large potsherd. Otherwise, she went to
work in much the same way as Salim’s mother, except that she saved
herself the trouble of walking round and round her work by squatting
at her ease and letting the pot and potsherd rotate round her; this is
surely the first step towards a machine. But it does not follow that
the pot was improved by the process. It is true that it was beautifully
rounded and presented a very creditable appearance when finished,
but the numerous large and small vessels which I have seen, and, in
part, collected, in the “less advanced” districts, are no less so. We
moderns imagine that instruments of precision are necessary to
produce excellent results. Go to the prehistoric collections of our
museums and look at the pots, urns and bowls of our ancestors in the
dim ages of the past, and you will at once perceive your error.
MAKING LONGITUDINAL CUT IN
BARK
DRAWING THE BARK OFF THE LOG
REMOVING THE OUTER BARK

BEATING THE BARK
WORKING THE BARK-CLOTH AFTER BEATING, TO MAKE IT

SOFT
MANUFACTURE OF BARK-CLOTH AT NEWALA

To-day, nearly the whole population of German East Africa is
clothed in imported calico. This was not always the case; even now in
some parts of the north dressed skins are still the prevailing wear,
and in the north-western districts—east and north of Lake
Tanganyika—lies a zone where bark-cloth has not yet been
superseded. Probably not many generations have passed since such
bark fabrics and kilts of skins were the only clothing even in the
south. Even to-day, large quantities of this bright-red or drab
material are still to be found; but if we wish to see it, we must look in
the granaries and on the drying stages inside the native huts, where
it serves less ambitious uses as wrappings for those seeds and fruits
which require to be packed with special care. The salt produced at
Masasi, too, is packed for transport to a distance in large sheets of
bark-cloth. Wherever I found it in any degree possible, I studied the
process of making this cloth. The native requisitioned for the
purpose arrived, carrying a log between two and three yards long and
as thick as his thigh, and nothing else except a curiously-shaped
mallet and the usual long, sharp and pointed knife which all men and
boys wear in a belt at their backs without a sheath—horribile dictu!
[51]
Silently he squats down before me, and with two rapid cuts has
drawn a couple of circles round the log some two yards apart, and
slits the bark lengthwise between them with the point of his knife.
With evident care, he then scrapes off the outer rind all round the
log, so that in a quarter of an hour the inner red layer of the bark
shows up brightly-coloured between the two untouched ends. With
some trouble and much caution, he now loosens the bark at one end,
and opens the cylinder. He then stands up, takes hold of the free
edge with both hands, and turning it inside out, slowly but steadily
pulls it off in one piece. Now comes the troublesome work of
scraping all superfluous particles of outer bark from the outside of
the long, narrow piece of material, while the inner side is carefully
scrutinised for defective spots. At last it is ready for beating. Having
signalled to a friend, who immediately places a bowl of water beside
him, the artificer damps his sheet of bark all over, seizes his mallet,
lays one end of the stuff on the smoothest spot of the log, and
hammers away slowly but continuously. “Very simple!” I think to
myself. “Why, I could do that, too!”—but I am forced to change my
opinions a little later on; for the beating is quite an art, if the fabric is
not to be beaten to pieces. To prevent the breaking of the fibres, the
stuff is several times folded across, so as to interpose several
thicknesses between the mallet and the block. At last the required
state is reached, and the fundi seizes the sheet, still folded, by both
ends, and wrings it out, or calls an assistant to take one end while he
holds the other. The cloth produced in this way is not nearly so fine
and uniform in texture as the famous Uganda bark-cloth, but it is
quite soft, and, above all, cheap.
Now, too, I examine the mallet. My craftsman has been using the
simpler but better form of this implement, a conical block of some
hard wood, its base—the striking surface—being scored across and
across with more or less deeply-cut grooves, and the handle stuck
into a hole in the middle. The other and earlier form of mallet is
shaped in the same way, but the head is fastened by an ingenious
network of bark strips into the split bamboo serving as a handle. The
observation so often made, that ancient customs persist longest in
connection with religious ceremonies and in the life of children, here
finds confirmation. As we shall soon see, bark-cloth is still worn
during the unyago,[52] having been prepared with special solemn
ceremonies; and many a mother, if she has no other garment handy,
will still put her little one into a kilt of bark-cloth, which, after all,
looks better, besides being more in keeping with its African
surroundings, than the ridiculous bit of print from Ulaya.
MAKUA WOMEN

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Intellectual Property: The Law of

Trademarks, Copyrights, Patents, and

To access the appendices, go to http://www.cengagebrain.com

PART I Introduction to Intellectual Property

PART II The Law of Trademarks

Chapter 3 TTrademark Selection and Searching 44

Chapter 4 TThe Trademark Registration Process 59

Chapter 5 Postregistration Procedures, Trademark Maintenance, and

Chapter 6 IInter Partes Proceedings, Infringement, and Dilution 116

Chapter 7 NNew Developments in Trademark Law 147

Chapter 8 IInternational Trademark Law 166

Case Illustration—Effect of Foreign Registration in United States 182

PART III The Law of Copyrights

Chapter 10 TThe Subject Matter of Copyright 196

Chapter 11 TThe Rights Afforded by Copyright Law 213

Exception for Sound Recordings 219

Chapter 12 Copyright Ownership, Transfers, and Duration 232

Chapter 13 Copyright Registration, Searching Copyright Office

Chapter 14 Copyright Infringement 270

Chapter 15 New Developments in Copyright Law and the

Chapter 16 International Copyright Law 323

Summary of U.S. Relations with Foreign Nations 329

PART IV The Law of Patents

Chapter 18 Patent Searches, Applications, and Post-Issuance

Chapter 19 Patent Ownership and Transfer 399

Chapter 20 Patent Infringement 411

Chapter 21 N Developments and International

Agreement on Trade-Related Aspects of Intellectual Property Rights 451

PART V The Law of Trade Secrets and

Chapter 23 Unfair Competition 484

International Protection Against Unfair Competition 497

Chapter 24 IIntellectual Property Audits and Due Diligence Reviews 502

To access the appendices, go to www.cengagebrain.com

ADDITIONS AND ENHANCEMENTS TO THE FIFTH EDITION

General notes to readers

Note to readers regarding Putting It Into Words Assignments

Note to readers regarding the America Invents Act (AIA)

SUPPLEMENTAL TEACHING AND LEARNING MATERIALS

Instructor’s Manual with Test Bank

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EXHIBIT 8–3 Comparison of EUTM and Madrid Protocol Registrations 178

• Identify the four types of intellectual property.

INTELLECTUAL PROPERTY LAW BASICS

Intellectual Property Defined

TYPES OF INTELLECTUAL PROPERTY

Trademarks and Service Marks

Federal Registration of Trademarks. Interstate use of trademarks is governed by

EXHIBIT 1–1 Starbucks mark EXHIBIT 1–2 McDonald’s mark

Federal Registration of Copyrights. Neither publication nor registration of a work

Federal Registration of Patents. Patents are governed exclusively by federal law 35

Other Intellectual Property Rights

AGENCIES RESPONSIBLE FOR INTELLECTUAL

U.S. Patent and Trademark Office

Newala, too, suffers from the distance of its water-supply—at least

The water-supply of New Newala is in the bottom of the valley,

NATIVE PATH THROUGH THE MAKONDE BUSH, NEAR

MAKONDE LOCK AND KEY AT JUMBE CHAURO

MODE OF INSERTING THE KEY